Free Speech after Brown V. Entertainment Merchants Association: The Future of Video Game Regulation
Ryan Paree · Journal of Law and Society · 2013
Table of Contents I. INTRODUCTION II. BACKGROUND A. A Brief History of Censorship B. The Newest Medium: Video Games C. Video Games in Law III. ANALYSIS IV. CONCLUSION I. INTRODUCTION their early years, America's Founding Fathers understood importance of free and open communication. They knew that, to allow American people to preserve any of their freedoms, freedom of speech was an absolute necessity. Thus, First Amendment of United States Constitution grants protection from government interference in an open and free arena for communication. than two hundred years that have followed, courts have held regulations on freedom of speech to highest level of scrutiny, allowing restrictions almost exclusively when there is a very compelling government interest and no reasonable alternatives exist. Despite this, each new medium of communication faces its own trial by fire, in which attempts are made to connect it to social discord and limit its access. This new medium is always unique, and because it is, opponents have assumed that it was dangerous as well. As Justice Scalia wrote, In 1800's, dime novels depicting crime and 'penny dreadfuls' ... were blamed in some quarters for juvenile delinquency.... When motion pictures came along, they became villains instead.... Radio dramas were next, and then came comic books....And, of course, after comic books came television and music lyrics. (1) The video game industry now must pay its dues: in Brown v. Entertainment Merchants Ass'n, court majority placed video games in their rightful place as next new medium protected under First Amendment. (2) This Note will attempt to build a timeline of relevant factors that affect regulation of video game industry now that Supreme Court has granted it First Amendment rights, first time that any regulation on video games has been tried at this level. The timeline will examine relevant past regulations on other industries, focusing on private media industries such as film and music. Next, it will address current issues in video game regulation, and cover, in detail, Brown decision, as well as unique issues other courts have discussed. Finally, this Note will address what Brown means for future attempts at restriction, focusing on states, such as California, which remain committed to regulating violent video games. II. BACKGROUND A. A Brief History of Censorship There is no controversy regarding claim that, upon launch, nearly every new medium of entertainment in United States has been met with its fair share of criticism. than one hundred years of legislation, almost every new method of entertainment has been deemed different and dangerous by those who see it as something to fear. Comic books, radio, television, movies, and even new genres of music are met with fear and censorship. 1920s, jazz music was considered inherently immoral (3); in 1950s, so was rock-and-roll (4); up through 1990s, rap was genre of music to attack. (5) Each medium appears to have unique aspects that somehow make it different enough to warrant unique legal treatment. (6) The history of this paranoia is outlined in comprehensive timeline found within Cato Institute's brief filed with Brown v. Entertainment Merchants Ass 'n (formerly Schwarzenegger v. Entertainment Merchants Ass'n), examining history of fear that each new medium would bring about immorality and crime. (7) When the moving picture machine was first released, one report claimed that [t]he days when police looked upon dime novels as most dangerous of textbooks ... [were] drawing to a close. (8) Ironically, when radio serial rose to popularity, won-visual aspect of drama was touted as factor making medium so dangerous, forcing listeners to visualize scenarios in their head, making it more difficult for listeners to distinguish radio violence from reality. …